CHRISTIE, District Judge:
Teddy Gray Shanklin, plaintiff, brings this action seeking to recover damages for injuries he sustained when his left arm was caught in a forage harvester and subsequently amputated three inches below the shoulder. The forage harvester was manufactured by the defendant, Allis-Chalmers Manufacturing Company, and sold by one of defendant's authorized dealers, Greenbrier Tractor Sales, Lewisburg, West Virginia, to plaintiff's employer, Ralph Phillips, Sinks Grove, Monroe County, West Virginia. The testimonial evidence of record was received by the late Judge Harry E. Watkins, sitting without a jury. The case will be decided in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Diversity and requisite amount appearing, jurisdiction is bestowed on the Court by virtue of 28 U.S.C.A. § 1332.
Defendant's liability is predicated on three specific acts of negligence, any one of which, if found to exist, would be sufficient to support a recovery for plaintiff. The complaint asserts the defendant is liable (a) because it negligently assembled, arranged, and constructed the forage harvester and so designed it that there were no guards or barriers to prevent the accident; (b) because the defendant, through its agent, Greenbrier Tractor Sales, was negligent in demonstrating an improper and unsafe method for unclogging the forage harvester; and (c) because defendant, through its agent, Greenbrier Tractor Sales, was negligent as to the instructions given for the proper method of operating the forage harvester. In its answer, defendant denies all allegations of negligence; specifically denies that Greenbrier Tractor Sales was its agent for any purpose—particularly for the purpose of demonstrating the forage harvester in question to the plaintiff. In addition, defendant sets up the affirmative defenses of contributory negligence and/or assumption of the risk.
To properly decide the issues thus raised and make appropriate findings, it is first necessary to have some understanding of the machine which caused the injury. The harvester consists of two fundamental parts, the row crop attachment and the basic machine, generally called a "chopper." The row crop attachment is specifically designed to harvest a crop that is grown in single rows such as the corn plaintiff was harvesting at the time of his injury. In the lower frame of the row crop attachment there is a cutting blade section, consisting of a sickle knife which is located four to six inches off the ground. As the machine moves forward into the stalks of corn,
With this in mind, let us now turn to the evidence of record.
FINDINGS OF FACT
I
It is undisputed, and the Court so finds, that in September of 1961, plaintiff, then 36 years of age, was employed by Ralph Phillips to manage his 1,000 acre farm located near Sinks Grove, Monroe County, West Virginia; that plaintiff had been periodically employed by Phillips since 1958 and was during this time living on the Phillips farm in a house provided for him; that Phillips during this time was engaged in coal mining and was only able to be on the farm on weekends; and that plaintiff's duties included, among others, feeding the stock and harvesting the crops.
II
There is no factual dispute as to how the actual injury occurred. Thus, the Court finds as follows: On September 12, 1961, around 10:30 A.M., plaintiff was operating the forage harvester in question cutting rows of corn into silage for the purpose of filling two silos located on the farm. As the harvester was moving along the rows ensilage quit coming out of the chute, leading plaintiff to believe that the machine was clogged. He stopped the tractor and placed it in neutral gear, leaving the motor on. He, however, left the forage harvester power take-off in gear so that it continued to run in full force. Plaintiff then went back to the left side of the harvester and climbed up on the frame. The corn had rolled and clogged in front of the feed rolls of the row crop attachment. He then reached through the safety door covering the revolving rolls and began loosening the corn some two feet from the rolls. Apparently some of the corn stalks caught his glove and pulled his left arm into the rolls. The rolls in turn crushed his arm and pulled it into the rotating blades of the basic machine which chopped the arm off a few inches above the wrist. Subsequently, the arm had to be amputated approximately three inches below the shoulder.
III
The basic factual controversy revolves around whether Mr. Arbuckle, owner of Greenbrier Tractor Sales, properly demonstrated and instructed plaintiff as to the correct procedure of running and handling the forage harvester, particularly in demonstrating the safety devices. Since Arbuckle, however, was not made a party defendant to this action, it first becomes imperative to find whether an agency relationship existed between Arbuckle and the defendant, so as to hold the latter liable for Arbuckle's acts. The facts show that Greenbrier Tractor Sales operated under a contract with defendant. By the terms of the contract which was negotiated from year to year, the dealer (Greenbrier Tractor Sales) was given a non-exclusive right to sell the defendant's products in and around the Lewisburg, West Virginia area. The contract specified how the farm equipment, parts and accessories would be sold to the dealer, the inventory which the dealer was to carry, the credit terms between the dealer and the defendant, and advertising, service and other collateral matters relative to the sale of the equipment to the ultimate purchaser. In particular, Section 28 of the contract provided,
Thus, based on the facts in the record and the contractual provisions, this Court finds as a fact that Greenbrier Tractor Sales was not a general agent of the defendant. However, the fact that one is not a general agent for a company does not preclude a finding that a person may be a special agent for a limited or particular purpose. See 1 M.J., Agency, Sections 5, 6 (1948); 3 Am.Jur.2d, Agency, Section 6 (1962). Section 18 of the contract specifically provides in pertinent part as follows:
Thus, in Section 28, the defendant withholds from the dealer any power to bind it, yet under Section 18, it clothes the dealer with authority to demonstrate the machine. In a situation such as this the intentions of the parties must be ascertained and given effect. In this regard, Arbuckle testified as follows: "Well, we demonstrated them the way they (Allis-Chalmers) tell us and to the best of our ability, yes, sir." This indicates the control defendant had over the demonstration of their equipment. Viewed in this light, plaintiff was justified in assuming that Arbuckle in demonstrating the machine was acting under the authority and control of the defendant. Therefore, this Court finds as a fact that, notwithstanding the proscriptive language of Section 28, under Section 18 of the contract, Arbuckle was clothed with the authority of a special agent of defendant for the limited purpose of instructing plaintiff as to the proper manner of operating the forage harvester. This finding necessarily eliminates the necessity of considering plaintiff's secondary contention that the duty to instruct was non-delegable.
IV
Turning now to the actual demonstration: Sometime in the early fall of 1960, the year preceding the accident, plaintiff and Phillips discussed the possibility of purchasing a new forage harvester. It is not quite clear how their interest was communicated to Greenbrier Tractor Sales, but in any event, in September of 1960, Arbuckle and two of his salesmen, Paul Cruise and Elmer Hedrick, took the forage harvester to the Phillips farm for the purpose of demonstrating it. The demonstration lasted some two to three days. The pivotal factual dispute centers around Arbuckle's demonstration of the harvester, in particular when it became clogged. Shanklin testified on direct examination that when Arbuckle was demonstrating the machine,
On cross-examination, Vass revealed, however, that he was only at the farm for two to three hours during the three-day demonstration of the harvester and for half of that time he was working at the silos. Ocie Eads, owner of the trucks used to haul the forage to the silos, testified that he was at the Phillips farm during the demonstration. Concerning the operation of the forage harvester during that time, Eads stated that he did not pay too much attention because he was not out in the field, but rather at the silo running silage. He further stated that the closest he ever was to the harvester while it was being demonstrated was some three hundred yards. As to his opinion whether or not corn was being unclogged from the machine while it was running, he stated, "It looked like it was running to me. I could hear the sound of the machine a-running. I think it was."
Defendant's evidence as to how the forage harvester was demonstrated came from the testimony of Arbuckle, Paul Cruise, and Elmer Hedrick, Jr. Concerning this factual dispute, Arbuckle testified that when the machine became clogged, while it was hard to remember back that far, it was always his custom to shut off the machine. In particular, he stated that he was sure he did not open the safety door and get in there while the machine was running. He did state, however, it was possible that he may have pulled some stalks out of the top of the row crop attachment to straighten them out while the machine was running. Cruise and Hedrick, salesmen for Greenbrier Tractor Sales, testified that they were present during the demonstration and that they never saw Arbuckle unclog the machine without cutting off the power.
Based on this evidence, the Court finds as a fact that an improper and unsafe method of unclogging the forage harvester was not approved or demonstrated to the plaintiff by Arbuckle. Arbuckle had demonstrated around fifteen similar machines prior to September of 1960 and the Court finds it hard to understand or believe that anyone with his experience would demonstrate a way to use it which was obviously dangerous and could only result in injury to a person following such a procedure. Even plaintiff, by his own testimony, revealed that he was aware of the danger attendant the unclogging of the harvester while the power was on, but stated that he did so only to save time. Little weight can be given the testimony of Vass and Eads. As indicated by his testimony, Vass was only present for an hour and a half on the first day of the demonstration. While during this short time he stated that the machine did become clogged, it is significant to note that he could only assume from the fact that the harvester was running that the feed rolls were rotating when Arbuckle unclogged the corn.
While there are certain other statements and evidence relating to this conflict, the Court, as the trier of fact and judge of the credibility of the witnesses, finds that this testimony would be of no material benefit to plaintiff in establishing this claim by a preponderance of the evidence.
V
Plaintiff, secondly, contends that he was not instructed as to the use or purpose of the reverse bar or cylinder wrench which was located on the rear of the basic machine. Arbuckle, on direct examination, testified as follows on questioning by plaintiff's attorney:
Plaintiff, on the other hand, testified as follows:
The fact that during the three hours in which his arm was caught in the machine, plaintiff never once mentioned to any of his fellow employees, friends or neighbors, who were there trying to extricate his arm from the machine, that the cylinder wrench or reversing bar might be used to reverse the feed rolls and free him, tends to give credence to his testimony that Arbuckle did not instruct him as to the purpose or use of the wrench or bar. But, even if we were to find that Arbuckle did not inform plaintiff of the wrench or reverse bar and its proper use, this failure could not support a recovery for plaintiff because it was not the sole or proximately contributing cause of the accident and resulting injury to plaintiff, and the Court so finds as a fact. The purpose of placing the reverse bar on the forage harvester was to assist in removing solid obstructions from the feed rolls such as rocks, corn or fodder, which would jam tightly in the rolls and stall them. Thus, by reversing the direction of the rolls manually by use of the reverse bar, it would aid in the clearing of the obstruction from the feed rolls. Quite clearly then the reverse bar would not be used when the feed rolls were rotating freely. Here, the evidence shows by plaintiff's own testimony that at the time of the accident most of the clogging occurred in the row crop attachment itself around the gathering chains preventing the feed rolls from getting hold of the stalks. Thus, reversing the rolls with the bar would have had no effect whatsoever in clearing the obstruction as the rolls were never stalled in the first place.
VI
Plaintiff, thirdly, contends that Arbuckle failed to furnish him with the proper instruction and maintenance manual for the harvester. In connection with the instruction manual, an ancillary problem arose at the trial concerning plaintiff's signature on the delivery record for
Likewise, the same is true regarding plaintiff's alleged signature on the delivery record. Plaintiff, on questioning by defense, admitted the following:
Concerning the clogging of the feed rolls, the testimony further showed the following:
Thus, in the light of this evidence, it is clear that plaintiff was well informed of the safe operation, care and handling of the forage harvester, and whether his signature was or was not forged on the delivery record becomes immaterial.
I
Plaintiff lastly contends that the defendant negligently arranged, assembled and constructed the harvester and so designed it that there were no guards or barriers to prevent the accident. Deciding this issue necessarily involves a mixed question of law and fact. At the outset, a question of significance is whether defendant can be held liable to plaintiff who was not a party to the contract between Arbuckle and defendant. The general rule has been that a manufacturer was not liable to third persons not in contractual relationship (privity) with him for negligence in the construction, manufacture or sale of articles, the basis for this rule derived from the old English case of Winterbottom v. Wright, 10 M & W 109, 152 Eng.Rep. 402 (Ex. 1842). Huset v. J. I. Case Thrashing Machine Co., 120 F. 865 (8th Cir. 1903); Savings Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621 (1879). A contrary rule was seen by the English court in the context of that period as being fraught with such "absurd and outrageous consequences" as to unjustly involve manufacturers in untold litigation with people with whom they had had no contact or business relationship whatever. See 123 A.L.R. 1197 (1939); 58 A.L.R.2d 865 (1958). But, in 1916, the landmark decision of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 (1916), set a new precedent for fixing tort liability of manufacturers by effectively abolishing the privity requirement where the injury resulted from an inherently or imminently dangerous instrumentality. Defendant vigorously contends that plaintiff has not shown that the forage harvester was inherently or imminently dangerous and thus, there being no privity of contract, plaintiff cannot maintain this action. He is confusing the issue. We are not here concerned with a hidden or latent defect rendering an otherwise safe instrumentality an inherently or imminently dangerous one. Instead, the essence of the complaint here is for unconcealed negligence in design, demonstration and instruction. At present, where recovery is sought for negligence in tort, the authorities are virtually unanimous in concluding that the doctrine of privity of contract is no longer acceptable, insofar as that doctrine, of its own force, would immunize a manufacturer from liability to one other than the party to whom he sells his product for injury caused by the product, whether it be inherently or imminently dangerous or whether it be non-inherently or non-imminently dangerous, if the injury sustained by the user was one which might reasonably have been anticipated. Cf. 74 A.L.R.2d 1189 (1960). See also an article in the 1937 Virginia Law Review where the author stated:
More recent evidence of this attitude is seen in our neighboring state of Virginia, where the legislature has passed the following Code provision:
The latest West Virginia case touching on the point is Williams v. Chrysler Corporation, 148 W.Va. 655, 137 S.E.2d 225 (1964). There, plaintiff, a passenger, instituted an action against the buyer and manufacturer claiming that the manufacturer owed a duty of reasonable care toward the ultimate user. The Court did not determine or reach this issue as it disposed of the case on the disclaimer provision. It did, however, suggest that
II
Directing our attention to the evidence on negligent design: First, the lack of guards or barriers over the feed rolls. To meet his burden of proof in this regard, plaintiff relies on the testimony of defendant's expert witness, Paul A. Whistler, products engineer for Allis-Chalmers. His testimony, however, persuasively negates plaintiff's claim. He stated, concerning the barriers and guards,
Second, lack of an automatic reverse gear that would have reversed the feed rolls without the operator leaving the tractor. In support of this contention plaintiff submitted four advertising circulars from McCormick's and New Holland's field and forage harvesters showing and displaying automatic reverse gears. These circulars, while in effect advocating and stressing efficiency, do not point to the automatic reverse gear as a safety feature. Concerning the practicality of the automatic reverse gear, Whistler's testimony is uncontradicted and is as follows:
From the above, the Court finds that plaintiff has not come forth with sufficient evidence showing negligent design on the part of defendant in the manufacture of the forage harvester, nor to overcome the defendant's rationale for not installing guard barriers over the feed rolls and an automatic reverse gear. For mere "[f]ailure to adopt the most modern, or even a better safeguard, did not render the manufacturer liable" to plaintiff. Brown v. General Motors, 355 F.2d 814 (4th Cir. 1965).
III
In the circumstances of this case, the mere fact that the plaintiff was injured in the use of the machine that was manufactured by the defendant raises no presumption of defendant's negligence. Saena v. Zenith Optical Co., 135 W.Va. 795, 65 S.E.2d 205. Instead, findings of fault and foreseeability of injury are necessary prerequisites to fixing liability for negligence, the rule of "absolute liability" being inapplicable under the facts and circumstances of this case. Brown v. General Motors, supra. Thus, to warrant a recovery here, the plaintiff must carry the traditional burdens of proving by a preponderance of the evidence: (a) That the machine was so negligently designed that in its normal operation the manufacturer should have foreseen that it was unreasonably dangerous for the purpose for which it was intended and that this negligent design proximately caused the accident; or (b) That Arbuckle as the agent of the defendant negligently failed to properly demonstrate the machine and which negligence proximately caused the accident; or (c) That Arbuckle as such agent was negligent in not instructing the plaintiff as to the proper use of the machine and which negligence proximately caused the accident. As we view the evidence, the plaintiff has failed to carry his burden as to any of these propositions. Thus, it becomes unnecessary to consider whether he was himself guilty of negligence or that he assumed the risk, either from a factual or legal standpoint.
IV
So viewed, the plaintiff's complaint will be dismissed and the Clerk directed to enter judgment for the defendant. Counsel will present an appropriate order within ten (10) days.
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